Com. v. Shivers, S. ( 2017 )

J-S07006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SHANE DEMOUR SHIVERS
Appellant No. 1132 MDA 2016
Appeal from the PCRA Order June 21, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s):
CP-36-CR-0000689-1997
CP-36-CR-0002210-1997
CP-36-CR-0002532-1997
CP-36-CR-0002619-1997
CP-36-CR-0002620-1997
BEFORE: BOWES, LAZARUS AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 15, 2017
Shane Demour Shivers appeals from the June 21, 2016 order
dismissing his third PCRA petition as untimely. We affirm.
On November 12, 1997, Appellant plead guilty to seven counts
robbery, two counts aggravated assault, and eight counts of criminal
conspiracy. The pleas stemmed from Appellant’s involvement an armed
robbery spree in Lancaster, Pennsylvania, while he was sixteen years old.
Appellant shot two of the robbery victims, but, fortunately, neither victim
died. The trial court imposed an aggregate term of thirty-five to seventy
years imprisonment, which we affirmed on September 21, 1998.
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Commonwealth v. Shivers, 726 A.2d 1083 (Pa.Super. 1998) (unpublished
memorandum). Appellant did not seek further review.
Appellant filed his first PCRA petition on September 26, 2005, counsel
was appointed, and the petition was dismissed as untimely. We affirmed the
denial of PCRA relief. Commonwealth v. Shivers, 943 A.2d 322
(Pa.Super. 2007) (unpublished memorandum). On June 30, 2010, Appellant
filed a second PCRA petition. Again, relief was denied, and we affirmed.
Commonwealth v. Shivers, 34 A.2d 232 (Pa.Super. 2011) (unpublished
memorandum).
On March 23, 2016,1 Appellant filed the instant pro se PCRA petition,
his third. Appellant claimed entitlement to relief under Graham v. Florida,
130 S. Ct. 2011 (2010), Miller v. Alabama, 132 S. Ct. 2455 (2012), and
Montgomery v. Louisiana, 136 S. Ct. 718 (2016). In Miller, the United
States Supreme Court held that it was unconstitutional, under the Eighth
Amendment’s prohibition against cruel and usual punishment, to sentence a
juvenile homicide offender to a mandatory term of life imprisonment without
parole. The Court had applied a similar Eighth Amendment analysis in
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1
Pursuant to the prisoner mailbox rule, a PCRA petition is considered filed
on the date it was delivered to prison authorities for mailing. See
Commonwealth v. Castro, 766 A.2d 1283, 1287 (Pa.Super. 2001);
Commonwealth v. Little, 716 A.2d 1287 (Pa.Super. 1998). Instantly, the
certified record includes a cash slip for postage dated March 23, 2016, that
confirms the date Appellant submitted the petition to prison authorities.
Therefore, we consider the petition to have been filed by that date.
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Graham in relation to juvenile non-homicide offenders sentenced to life
imprisonment without parole. Its recent pronouncement in Montgomery
accorded full retroactive effect to the Miller decision.
Concluding that Appellant’s reliance upon Graham and Montgomery
was unavailing, the PCRA court issued notice pursuant to Pa.R.Crim.P. 907
of its intention to dismiss the petition without hearing, and after receiving
Appellant’s pro se response, it dismissed the petition as untimely. This
appeal followed.
Appellant presents two questions for our review:
I. Whether [Appellant’s] aggregate [sentence of] 35 to 70
[years] imprisonment for juvenile non[-]homicide crimes is
disproportionate, cruel and unusual punishment in violation of
his [rights under the] 8th and 14th [Amendments] when
compared to term-of-year punishments juvenile homicide
offenders are sentenced to in Pennsylvania now that “imposition
of a state’s most severe penalties on juvenile offender’s cannot
proceed as though they were not children.” Miller v. Alabama,
132 S.Ct 2455, 2466 (2012).
II. Whether [Appellant’s] guilty plea pursuant to Pa.R.Crim.P.
590 was tendered in violation of his [rights under the] 8th and
14th [Amendments] now that [a] juvenile “offenders age is
relevant to the Eighth Amendment, and criminal procedure laws
that fail to take defendants’ youthfulness into account at all
would be flawed.” Graham v. Florida, 130 S.Ct 2011, 2013
(2010)?
Appellant’s brief at 4.
We review the “denial of PCRA relief to determine whether the findings
of the PCRA court are supported by the record and free of legal error.”
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Commonwealth v. Roane, 142 A.3d 79, 86 (Pa. Super. 2016) (quoting
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)).
At the outset, we must confront the petition’s timeliness because
“neither this Court nor the trial court has jurisdiction over [an untimely]
petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014).
This time requirement is mandatory and the court may not ignore it in order
to reach the merits of the petition. Commonwealth v. Murray, 753 A.2d
201, 203 (Pa. 2000).
All PCRA petitions must be filed within one year of the date a
defendant’s judgment becomes final unless an exception to the one-year
time restriction applies. 42 Pa.C.S. § 9545(b)(1). “A judgment becomes
final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.” 42 Pa.C.S. §
9545(b)(3).
Instantly, Appellant’s judgment of sentence became final during
October 1998 since he did not seek review in our Supreme Court. Thus, the
present petition filed during March 2016 is facially untimely and cannot be
addressed unless one of the following exceptions to the one-year time bar
apply:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
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claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown
to the petitioner and could not have been ascertained by the
exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply
retroactively.
42 Pa.C.S. § 9545(b)(1)(i-iii). In addition, any exception must be raised
within sixty days of the date the claim could have been presented. 42
Pa.C.S. § 9545(b)(2).
Relying upon the Supreme Court’s decision in Montgomery, Appellant
invokes the newly-recognized constitutional right exception to the PCRA
time-bar. While Appellant’s argument is not a model of clarity, Appellant
appears to assert that his present PCRA petition is timely filed since
Montgomery created a new constitutional right that is applicable to him and
that he filed the PCRA petition within sixty days of when Montgomery was
decided. Specifically, he maintains that Montgomery rendered retroactive
the United States Supreme Court’s decision in Graham as well as Miller.
This assertion fails for at least two reasons. First, the Montgomery Court
expressly gave Miller retroactive effect, not Graham. Second, even
recognizing the High Court’s reference to Graham as “the ‘foundation
stone”’ for Miller's analysis,” Appellant still is not entitled to relief.
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Montgomery, supra at 732. In Miller, the Court ruled that it was
unconstitutional to sentence a juvenile homicide offender to an automatic
term of life imprisonment without parole. Similarly, the Graham Court held
that the Eighth Amendment bars life without parole for juvenile nonhomicide
offenders. As Appellant was neither convicted of homicide nor sentenced to
life imprisonment without parole, neither case applies to his situation.
Having found that Appellant’s PCRA petition was untimely filed and
that no exceptions to the statutory time-bar apply, we affirm the order
dismissing his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2017
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